Was there a double standard on the investigations of David Petraeus and Hillary Clinton?

Soon after the FBI announced that it did not recommend charges against Hillary Clinton for her use of private servers as Secretary of State, Donald Trump revived an old line of attack: that Clinton was getting better treatment than David Petraeus.

"The system is rigged. General Petraeus got in trouble for far less. Very very unfair! As usual, bad judgment," Trump tweeted.

Petraeus, a leading general in Iraq and Afghanistan and former CIA director, pled guilty in 2015 to a misdemeanor charge of mishandling confidential materials after he gave Paula Broadwell, his biographer and mistress, access to classified information. In his plea deal, Petraeus was given two years probation and a $100,000 fine. In contrast, the FBI just announced that they do not recommend prosecution for Clinton.

Trump and other Republicans have frequently compared Clinton’s case to that of Petraeus. New information released July 6 by FBI director James Comey about Clinton’s case makes it easier to look into this comparison.

It remains unclear how much information was exposed in each case, and how dangerous that information would be in the wrong hands, which makes it difficult for us to fact-check. Experts we consulted disagreed about which case represented more risk of exposure.

Petraeus’ case made him more legally vulnerable than Clinton. Petraeus knew that he was exposing confidential information and then lied to FBI investigators about it. Petraeus shared eight notebooks, called "black books," with Broadwell that contained his own handwritten notes on classified matters.

On the other hand, the information Clinton handled was electronic. Because there were thousands of emails on a private server that could be hacked, the information was more vulnerable to theft than Petraeus’ notebooks.

Finally, we don’t know the exact contents of either the notebooks or the emails. This makes it difficult to say what breach was worse.

What went out

There are three levels of classification set by the U.S. government: confidential, secret, and top secret, in order of increasing severity. Comey said that the FBI found 110 emails in 52 email chains from the Clinton servers that contained information that was classified at the time they were sent or received. Of those email chains, 36 were found to include information labeled secret; eight were found to contain information labeled top secret. (Roughly 2,000 additional emails contained information that was not classified at the time they were sent or received but was later made confidential).

Petraeus gave Broadwell access to eight "black books" which contained classified information. The black books contained top-secret and "code word" information. A search of Broadwell’s apartment found digital copies of over three hundred documents marked "secret."

Liza Goitein, co-director of the Brennan Center for Justice’s Liberty and National Security Program and a critic of the U.S. classification system, told us that as a citizen, as opposed to as a prosecutor, she’d evaluate the mishandling of information based on how dangerous the information would actually be if exposed.

Without a better sense of what information was contained in those emails, Gotein suggested, it's hard to say how dangerous Clinton and Petraeus’ actions really were. Critics of the U.S. classification system argue that over-classification makes official designations at best an imperfect barometer of how sensitive information really is. Gotein points, for instance, to the CIA’s targeted killing program in Pakistan, which is officially classified but has been widely reported.

The legal situation

At the July 5 news conference, Comey said that Clinton’s case did not resemble others in which prosecutions had been pursued for mishandling of classified information.

"All the cases prosecuted involve some combination of clearly intentional and willful mishandling of classified information or vast quantities of information exposed in such a way as to support an inference of intentional misconduct or indications of disloyalty to the United States or efforts to obstruct justice," Comey said.

Petraeus’ mishandling of documents was indisputably intentional, and Petraeus obstructed justice by lying to FBI agents investigating the case.

In their investigation, the FBI found a tape of Petraeus acknowledging that information was classified before giving it to Broadwell anyway. Petraeus agreed in his plea deal that his actions "were in all respects knowing and deliberate."

In his July 5 press conference, Comey said that the FBI "did not find clear evidence that Secretary Clinton or her colleagues intended to violate laws governing the handling of the classified information." He went on to say that Clinton should have known that her handling of the emails was inappropriate, and that her behavior was "extremely reckless."

Petraeus also acknowledged that he had lied to the investigators about giving confidential information to Broadwell. Comey did not indicate that Clinton or her colleagues had lied in interviews related to this case, though the FBI’s findings did contradict some of her campaign’s public statements.

Experts who thought Petraeus’s legal situation was substantially worse than Clinton’s pointed to his lying to investigators as the primary factor.

Exposed!

Petraeus gave the black books to Broadwell as she was working on her biography of him, All In: The Education of General David Petraeus. But none of the classified information in those books made it into that biography. The fact that the information given to Broadwell apparently never made it any further was an element of Petraeus’s defense, the Washington Postreported.

In contrast, the possibility that Clinton’s server had been hacked, exposing classified information, could not be eliminated as of Comey’s statement. No evidence of a hack was found, Comey said, but information might have been accessed by "hostile actors" without leaving any evidence.

Because Clinton used the email when traveling abroad and emailed with people whose emails had been compromised, and because it was obvious she was using a private server, Comey said, "We assess it is possible that hostile actors gained access to Secretary Clinton's personal email account."

Clinton’s use of a private server would have been apparent to people who had her email address, Clifford Neuman, director of the University of Southern California’s Center for Computer System Security, said. Sensitive information was transmitted digitally, and Neuman said Clinton would not have been able to sustain the IT expertise necessary to protect her emails. On the other hand, Petraeus gave classified information to Broadwell privately and in hard copies.

For these reasons, Neuman said that he thought it was more likely that "foreign actors" had accessed classified information in Clinton’s case than Petraeus’s. Neuman concluded that Clinton’s treatment of classified information was "likely more damaging."

Our conclusion

Trump tweeted that Petraeus "got in trouble for far less" in comparison with Clinton. To the extent his tweet was a comment on the purely legal elements of the case, he’s wrong to suggest that Petraeus — who acted intentionally and then lied about it — was treated unfairly compared to Clinton. The Trump campaign did not respond to a request for comment for this article.

But there are other ways to weigh the seriousness of Petraeus and Clinton’s actions. Based on the information currently available, it's hard to say how damaging the classified information in the two cases would be if exposed. It may be that Clinton’s use of a private server was more vulnerable to Comey’s "hostile actors."

For these reasons, we’re not going to rule on whether Petraeus did "far less" than Clinton. The comparison is popular but imperfect, and benefits from more context that a Tweet allows.

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